Citation NR: 9723990
Decision Date: 07/10/97 Archive Date: 07/21/97
DOCKET NO. 95-39 552 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office in
Hartford, Connecticut
THE ISSUE
Entitlement to special monthly pension based on the need for
regular aid and attendance or by reason of being housebound.
REPRESENTATION
Appellant represented by: Connecticut Department of
Veterans Affairs
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
Suzie S. Gaston, Counsel
INTRODUCTION
The veteran had active military service from October 1954 to
September 1958. He has been represented throughout his
appeal by the Connecticut Department of Veterans Affairs.
This matter came before the Board of Veterans’ Appeals
(hereinafter Board) on appeal from a rating decision of May
1995, by the Hartford, Connecticut Regional Office (RO),
which denied the veteran’s claim for special monthly pension.
The notice of disagreement with this determination was
received in May 1995. The statement of the case was issued
in June 1995. Medical statements were received in July and
August 1995. A Department of Veterans Affairs (VA)
compensation examination was conducted in September 1995.
Thereafter, a rating action in October 1995 confirmed the
previous denial of the veteran’s claim for special monthly
pension. The substantive appeal was received in November
1995. The veteran appeared and offered testimony at a
hearing before a hearing officer at the RO in March 1996. A
transcript of the hearing is of record. A hearing officer’s
decision was entered in August 1996, which confirmed the
previous denial of the veteran’s claim of entitlement to
special monthly pension. A supplemental statement of the
case was issued in August 1996.
In April 1997, the Board remanded the case to the RO for
further development. On June 12, 1997, the veteran appeared
and offered testimony at a hearing before a member of the
Board, sitting at Hartford, Connecticut. A transcript of
that hearing is also of record. Additional medical evidence
were submitted at the hearing, and the veteran waived RO
consideration of the additional evidence. The appeal was
received at the Board later in June 1997.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran essentially contends that because of the
increased severity of his temporal lobe epilepsy, he is in
need of the regular aid and attendance of another person.
The veteran indicates that he has seizures mostly in his
sleep; he states, therefore, that it is dangerous for him to
be alone for any length of time. The veteran also indicates
that because of the nature of his seizures, he never know
when he may need to be carried to the hospital. The veteran
also maintains that the fear of death from his nocturnal
attacks has caused him to be in a constant state of anxiety.
The veteran directs the Board’s attention to medical
statements from doctors at the VA medical center in West
Haven attesting to the severity of the veteran’s epileptic
condition. Therefore, it is argued that the veteran needs to
have someone look after him on a permanent basis.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence supports the veteran’s claim of entitlement to a
special monthly pension based on the need for regular aid and
attendance of another person.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran’s claim has been obtained by the
RO.
2. The veteran’s disabilities, none of which has been
determined to be service-connected, include: temporal lobe
epilepsy, rated as 60 percent disabling; anxiety disorder,
rated as 30 percent disabling; status post fracture of the
distal right radius with carpal tunnel syndrome, rated as 20
percent disabling; right shoulder calcific tendinitis, rated
as 10 percent disabling; and arthritis, right fifth
metatarsal and history of bronchitis, both evaluated as
noncompensably disabling.
3. The veteran was found in October 1990 to be permanently
and totally disabled due to his nonservice-connected left
temporal lobe epilepsy.
4. The medical evidence of record indicates that the veteran
requires the regular aid and attendance of another person.
CONCLUSION OF LAW
The criteria for a special monthly pension based on the need
for the regular aid and attendance of another person have
been met. 38 U.S.C.A. §§ 1502, 1521,5107 (West 1991); 38
C.F.R. §§ 3.351, 3.352(a) (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran's claim is "well-grounded" within the meaning of
38 U.S.C.A. § 5107(a) (West 1991). That is, the claim is
plausible. Moreover, all relevant facts have been properly
developed. Therefore, no further assistance to the veteran
is required to comply with the duty to assist as mandated by
38 U.S.C.A. § 5107(a).
A. Factual background.
The basic facts in this case are not in dispute and may be
briefly described. By a rating action in October 1990, the
veteran was found to be permanently and totally disabled for
pension purposes, effective July 31, 1990. The veteran’s
disabilities, none of which has been determined to be
service-connected, include: temporal lobe epilepsy, rated as
60 percent disabling; anxiety disorder, rated as 30 percent
disabling; status post fracture of the distal right radius
with carpal tunnel syndrome, rated as 20 percent disabling;
right shoulder calcific tendinitis, rated as 10 percent
disabling; and arthritis, right fifth metatarsal and history
of bronchitis, both evaluated as noncompensably disabling.
The veteran’s claim for a special monthly pension was
received in August 1994.
Of record is a VA examination for housebound status or
permanent need for regular aid and attendance (VA Form 21-
2680), conducted from July 22, 1994 to August 5, 1994. The
examination reported that the veteran was hospitalized at the
time of his examination, and complained of nocturnal
seizures. It was noted that the veteran was 60 years of age
and spent eight hours in bed at night. The examiner noted
that the veteran had no physical restrictions, was able to
accomplish all activities of daily living unassisted and was
able to leave his immediate premises unassisted. The
examiner indicated that the veteran needed someone to be with
him at night as he gets seizures at night and sometimes he
had generalized status epilepticus which could be fatal if he
is left alone. The examiner noted that the veteran had
seizures while in the hospital coming from his left temporal
lobe as revealed by EEG studies and video monitoring. The
diagnosis was seizures, temporal lobe epilepsy.
Received in July 1995 was a medical statement from M. Kitaj,
M.D., who reported that the veteran had been under his care
at West Haven VA medical center for uncontrolled temporal
lobe epilepsy. Dr. Kitaj stated that the veteran was 100
percent disabled secondary to his medically uncontrolled
temporal lobe epilepsy He also stated that the veteran had
nocturnal anxiety associated with his seizures.
Of record is a medical statement from Richard H. Mattson,
M.D., dated in August 1995, who reported that the veteran had
been a patient at the VA epileptic clinic since 1990. Dr.
Mattson also reported that the veteran was 100 percent
disabled due to uncontrolled temporal lobe epilepsy. Dr.
Mattson further reported that the veteran suffered from grand
mal seizures, nocturnal anxiety, dizziness and light
headedness.
The veteran was afforded a VA compensation examination in
September 1995, at which time it was noted that he was
referred for evaluation of anxiety symptoms. It was reported
that the veteran was being treated at the West Haven clinic
for temporal lobe seizures. The veteran reported that his
seizures were poorly controlled with current medication and
the doctors had mentioned brain surgery to decrease the
frequency and intensity of the seizures. The veteran also
reported that, as a result of his seizures which tend to
occur at night, he often became extremely anxiety that he may
go into status epilepticus while asleep and die at home.
Following a mental status evaluation, the pertinent diagnoses
were anxiety disorder, NOS; rule out anxiety disorder due to
seizure disorder; and temporal lobe epilepsy.
At the time of the veteran’s personal hearing in March 1996,
the veteran reported that he had been on most medications for
seizures to no avail. The veteran indicated that when he had
a grand mal seizure, he needed to have someone with him; he
stated that if he has a seizure at night and goes into status
epilepticus while alone, he would be dead before anyone
reached him. The veteran also reported that doctors have
recommended that he undergo brain surgery. The veteran noted
that his seizures usually began with severe headaches and a
tingling sensation throughout his body. The veteran reported
that all of his grand mal seizures have been at night.
Received in June 1996 was a VA hospital summary showing that
the veteran was admitted in July 1995 for medical adjustment.
It was noted that he placed on EEG monitoring with neuro
checks q2 and continued on Lamotrigene. It was reported that
the veteran had no seizures on the first day; it was also
reported that he had one episode of biting his tongue at
which time his medication was increased. No seizure activity
was noted on continuous EEG. The discharge diagnosis was
seizure disorder.
Received in July 1996 were VA outpatient treatment reports
dated from March 1995 to April 1996 which show that the
veteran received clinical attention for several disabilities,
including evaluation of his seizure disorder.
On June 12, 1996, the veteran appeared at a hearing before a
member of the Board, sitting at the RO. The veteran’s
testimony is essentially consisted in the contentions section
above as well as the testimony offered at the hearing in
March 1996. In addition, the veteran reported that there are
no medications that control the seizures which he gets in his
sleep. The veteran further reported that he had been in
status epilepticus three times, and did not want to be in
that situation again. It was argued that unless there was
someone with the veteran to assist him, the nocturnal
seizures could be life threatening. The veteran reported
that he experienced seizures 2 to 3 times a month. The
veteran indicated all medications work for a while and then
stop working. The veteran related that he had been told by
doctors that his condition would only worsen.
Submitted at a hearing was a medical statement from Dr.
Mattson, dated in March 1997, indicating that the veteran
suffered from intractable epilepsy. Dr. Mattson reported
that the veteran had partial and complex partial seizures
which occurred during his sleep. He also reported that the
veteran had had repeated hospitalizations for status
epilepticus. Dr. Mattson further noted that the veteran had
been on all standard as well as investigational medications,
but was still uncontrolled. Dr. Mattson reported that, due
to risk of injury, it was medically advisable that the
veteran had a person in attendance with him. Dr. Mattason
further reported that medical assistance could be obtained
for severe seizures. He stated that the veteran was unable
to seek medical attention while he was in the midst of a
seizure.
Also submitted at the hearing was a VA hospital summary,
showing that the veteran was admitted to the hospital in
October 1992 for monitoring of his epilepsy. During
hospitalization, he had several nocturnal episodes which in
the morning he reported having seizures. It was noted that
the veteran did not have frank electrographic or clinical
seizures; he was treated with Tegretol. The assessment was
left temporal lobe epilepsy.
B. Legal analysis.
A veteran is considered to be housebound if he or she has a
single permanent disability rated at 100 percent and either
has an additional disability or disabilities independently
ratable at 60 percent or more, or "is substantially confined
to such veteran's house or immediate premises due to a
disability or disabilities which it is reasonably certain
will remain throughout the veteran's lifetime." 38 U.S.C.A.
§ 1502(c) (West 1991); 38 C.F.R. § 3.351(d) (1996). Greater
disability is required for entitlement to the additional
allowance for regular aid and attendance than for entitlement
to the additional allowance for housebound status. In turn,
greater disability is required for entitlement to housebound
status than for a basis evaluation of permanent and total
disability. In this case the RO found in October 1990 that
the veteran was permanently and totally disabled due to his
non-service-connected seizure disorder.
A special monthly pension may be payable to a veteran
otherwise entitled to nonservice-connected disability pension
if the veteran's overall disability picture results in the
need for the regular aid and attendance of another person.
38 U.S.C.A. § 1521 (West 1991); 38 C.F.R. § 3.351(a)(1)
(1996). To qualify for special monthly pension based on the
need for regular aid and attendance, it is required that an
individual be helpless or so nearly helpless as to require
the regular aid and attendance of another person. 38 C.F.R.
§ 3.351(b) (1996). The regulations further provide that aid
and attendance are needed if an individual is blind or nearly
blind, or is a patient in a nursing home because of mental or
physical incapacity, or if the evidence otherwise establishes
a factual need for aid and attendance. 38 C.F.R. § 3.351(c)
(1996).
The evidence does not reveal that the veteran is a patient in
a nursing home or that he is blind or nearly blind for
special monthly pension purposes. However, it remains for
consideration whether the evidence of record establishes a
factual need for aid and attendance. 38 C.F.R. § 3.351(c)(3)
(1996). Such determinations as to the need for aid and
attendance must be based on the actual requirement of
personal assistance from others. 38 C.F.R. § 3.352(a)
(1996). Under this regulation, consideration is to be given
to such conditions as: the inability of the veteran to
dress or undress himself/herself or to keep himself/herself
ordinarily clean and presentable; the frequent need of
adjustment of any special prosthetic or orthopedic appliances
which by reason of the particular disability cannot be done
without aid; the inability of the veteran to feed
himself/herself through loss of coordination of upper
extremities or through extreme weakness; the inability to
attend to the wants of nature; or incapacity, physical or
mental, which requires care or assistance on a regular basis
to protect the veteran from hazards or dangers incident to
his/her daily environment. The Board stresses that it is not
required that all of the disabling conditions enumerated
above be found to exist before a favorable rating may be
made. 38 C.F.R. § 3.352(a) (1996). Moreover, it is only
necessary that the evidence establish that the veteran is so
helpless as to need regular aid and attendance, not that
there be a constant need. 38 C.F.R. § 3.352(a) (1996).
In this regard, the Board notes that the record clearly
indicates that the nature of the veteran’s epileptic disorder
is such that he is in need of the aid and attendance of
another person. Significantly, during the VA examination in
August 1994, while it was reported that the veteran had no
physical restrictions and was able to leave his premises
unassisted, the examiner stated that the veteran needed
someone to be with him at night as he gets seizures at night
and sometimes he had generalized status epilepticus which
could be fatal if he is left alone. Moreover, in his medical
statement dated in March 1997, Dr. Mattson reported that due
to risk of injury, it was medically advisable that the
veteran had a person in attendance with him.
In light of the foregoing, and according to the veteran the
benefit of the doubt, the Board finds that there is a need
for regular aid and attendance.
ORDER
Special monthly pension based on the need for regular aid and
attendance is granted.
RICHARD D. TURANO
Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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